Appeal

[1] On 17 May 1997, the respondent ("the defendant") applied to the learned registrar of the Kota Kinabalu High Court by way of summons in chambers under O 18 r 19(1)(a), (b) or (d) of the Rules of the High 1980 to strike out the appellant's ("the plaintiff's") writ of summons and statement of claim. The defendant's application was dismissed by the learned registrar.

[2] The respondent's ("the defendant's") appeal against the above decision was allowed by the learned judicial commissioner who then struck out the plaintiff's action.

[3] Being dissatisfied, the plaintiff appealed to this Court. We heard the appeal on 17 March 2010 and arrived at a majority decision. Low Hop Bing and Clement Allan Skinner JJCA concurred, while Mohd Hishamudin bin Mohd Yunus JCA dissented. We now give the grounds of the majority judgment.

Factual Background

[4] On 11 April 1997, the plaintiff issued a writ of summons and statement of claim against the defendant, seeking a declaration that the Timber Sale Agreement in writing dated 9 November 1992 entered into between the defendant and the plaintiff; and the irrevocable Power of Attorney of the same date ("the PA"), given